Director of Public Prosecutions v Brodtmann
[2016] VCC 82
•5 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-10905
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID LEONARD BRODTMANN |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2015, 5 February 2016 | |
DATE OF SENTENCE: | 5 February 2016 | |
CASE MAY BE CITED AS: | DPP v Brodtmann | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 82 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plead guilty to 1 charge of using carriage service to transmit child pornography, 1 charge of use carriage service to procure person under 16 years to engage in sexual activity, 1 charge of procuring a child to engage in sexual activity outside Australia – charges relate to multiple acts and multiple victims – no evidence of intention to meet victims – early guilty plea – suffers PTSD from lengthy incarceration in Philippines– experience of detention already effective specific deterrence - low risk of re-offending despite lack of remorse and victim empathy - lengthy period of time spent in custody in Philippines taken into account and informs totality and fairness principles -
Sentence: Total effective sentence of 18 month’ imprisonment, released forthwith on a recognisance release order.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms. L. Skoblar | CDPP |
| For the Accused | Mr. J. Toal | Robert Wood & Assoc |
HER HONOUR:
1 David Brodtmann, you have pleaded guilty to a charge of using a carriage service to transmit child pornography, which is an offence against the law of the Commonwealth with a maximum sentence of ten years’ imprisonment; to a charge of using a carriage service to procure a person under 16 years to engage in sexual activity, which is an offence against the law of the Commonwealth with a maximum sentence of 15 years’ imprisonment; and a charge of procuring a child to engage in sexual activity outside Australia, which is an offence against the law of the Commonwealth with a maximum sentence of 15 years’ imprisonment.
2 I proceed to sentence you on the basis of the Prosecution Opening which was read out on your plea[1], and the sample of communications engaged in by you over the internet[2].
[1] Exhibit A
[2] Exhibit B
3 In brief, between August 2007 and April 2010, you participated in online written sexualised conversations with 29 people you believed to be underage, including making requests for images to be sent and web camera streaming (Charge 1). The child pornography thereby transmitted consists of the graphic sexual discussions initiated by you. Seven of the recipients of these messages represented themselves to be aged under 16; 19 represented themselves to be aged between 16 and 18; and three represented themselves to be aged over 18, but the chat logs obtained from your computer for these conversations with adults showed the subjects discussed by you to include sexual activity between children and adults.
4 Charge 2 relates to the period between August 2007 and June 2009 when you engaged in regular highly sexualised conversations with a boy who identified himself as being 14 years of age and living in Ghana, and you encouraged him to engage in sexual activity by masturbation. You discussed visiting him in Ghana, and sending money to him. In your interview with police in 2014, you said that you had continued contact with him into adulthood, and had indeed travelled to Ghana and met this person, and had sent him money, but there was no contact sexual activity between you when you were there.
5 Charge 3 relates to online sexualised conversations with a boy identifying himself as 14 years old. He was resident in the Philippines and you discussed meeting with him for sexual activity when you travelled to that country, which you did, a few days later.
6 These are serious offences. They were not described as rolled up charges, but clearly they relate to multiple acts, and, in Charge 1, to multiple victims. Your communications were with real victims, who were located in impoverished countries and were vulnerable to your sexual approaches, particularly if there was a discussion of money. The fact that there was such a discussion is an aggravating feature of all charges. You told police in your interview that you did send money through Western Union to people, describing yourself as being very generous with your money at that time in your life, although you denied ever sending money for sexual activities.
7 You stated to the police that it was all fantasy and that you never intended to meet any of the boys for contact sexual activity. There is no evidence before me that you ever did follow through with a meeting on travelling to the countries in which these people lived. However, the absence of that intention does not reduce your culpability for the way you used these boys for your own sexual gratification. Sexual activity that occurs over the internet is still sexual activity. Charge 1 involved 29 victims and conduct over a 32 month period; and Charge 2 involved conduct towards a vulnerable person over a 22 month period, which makes these serious examples of such offending.
8 Charge 3 is a relatively new offence. The two cases provided to me involved far more serious offending than in your case. In each instance, the offender had been actively engaged in the procuring of pre-pubescent girls for what were called ‘live sex shows’ sent to the offenders over the internet from the Philippines in accordance with their depraved requests. Your conduct, while repulsive, I find to be at the lower end of the scale of such offences.
9 I take into account in your favour that you pleaded guilty, although it must be said that the case against you was strong, involving hundreds of pages of chat logs. You did not enter a plea of guilty until the Final Directions Hearing eight weeks before the trial date, but the prosecution concede that following the straight hand-up brief procedure at committal, you expressed a desire to negotiate a settlement. I also take into account that you expressed a similar desire even earlier in your interview with police. I accept that these steps, and your ultimate pleas of guilty show a willingness to facilitate the course of justice.
10 To the police, you expressed a desire not to commit such offences again, and referred to the impact of your offending on your family, especially your mother, but I find there has been no expression of your remorse for the impact on your victims.
11 I have been told something of your personal history and your circumstances. You are now aged 52 years. You were born in Melbourne and have an older sister. Your father died at the age of 39 when you were only nine. That led to financial difficulties for the family. You and your sister took on jobs at a young age to help out. Despite this, you completed Year 12 and the Higher School Certificate, and later were conferred with a Bachelor of Commerce, becoming an accountant. You had a solid employment history and moved into financial planning, setting up your own business and developing a strong customer base. When the global financial crisis hit, many of your clients lost substantial value in their savings. Although this was out of your control, you were devastated for your clients and became severely depressed. You sought assistance from your doctor, and also psychological counselling. You unfortunately developed an alcohol addiction and could consume one to two bottles of wine in an evening.
12 It was put to me by your counsel that it was in this context that you began offending. The problem with that submission is that your offending in charges 1 and 2 began in 2007, before the financial crisis.
13 However, I do accept that you were struggling to come to terms with your positive HIV status, diagnosed in 2004. You have always identified as homosexual, and you have had two long term relationships with adult males. You have been with your current partner since late 1999 or early 2000. He is a Thai national living in Thailand, and over the years you have each visited the other but, realistically, you spend months apart. He told you that you were likely to have received the HIV infection from him, and although this made your relationship difficult for a time, you remain together.
14 It is possible that your offending arose out of loneliness and the depression that you began feeling following your diagnosis, although none of that provides any excuse for your offending. A report from Dr Padiglione, Infectious Diseases Physician[3], provides the information that you struggled with the diagnosis, and had bouts of severe depression. He referred you in July 2014 to Dr Jeanes, a psychiatrist, and you have been on antidepressant medication since then. Your long term prognosis for your depression is of sustained recovery[4], but you have been suffering significant anxiety about the sentence you are to receive today. You are not currently on any antiretroviral medication, but that is likely to be commenced at some point in the next year or two[5].
[3] Exhibit 5
[4] Report of Dr Jeanes, Exhibit 6
[5] Exhibit 5
15 I have considered your prospects for rehabilitation. Mr Cummins, forensic psychologist, provided a report[6] in which he formed the view that you are a low risk of re-offending, and do not suffer from a specific sexual deviance. You have no criminal record and have not re-offended. You have been involved in sport all your life, playing hockey at state underage level, and playing, coaching and umpiring junior and senior cricket teams at many clubs in the eastern suburbs of Melbourne, as well as taking on administrative positions. No reports have ever been made of any criminal conduct in your association with children in these areas. However, I note that in a chat log[7], it is recorded that you discussed with a 16 year old boy from Melbourne if he knew certain young males you coached in cricket, and this was in the context of you discussing meeting with him for sexual activity.
[6] Exhibit 3
[7] Exhibit B, p.3
16 I received a number of references from people who have known you in the sporting arena[8], and from a couple who have travelled with you to Thailand. All speak of your previous good character. You were supported in court by family and friends. I note that you have undertaken further studies[9], in real estate, and in mental health, with a view to obtaining future employment in one of these fields. I will return to my assessment of your prospects for rehabilitation later.
[8] Exhibit 7
[9] Exhibits 8 and 9
17 I also received references from your mother[10], your general practitioner[11], who has treated the whole family, your sister’s current doctor[12], and on the first plea date I heard evidence from your sister. This material forms the basis of the submission for leniency: that to sentence you to a term of imprisonment to serve immediately would impose a hardship on your mother to such an extent that it constitutes an exceptional circumstance to be taken into account in your favour.
[10] Exhibit 10
[11] Exhibit 4
[12] Exhibit 11
18 After remarks made by me on the plea on 14 December 2015, the hearing was adjourned to today, and the material just referred to was supplemented by a further statement from your mother[13], letters from Dr Pilkington[14], and a letter from your sister’s doctor[15]. You are your mother’s carer, and have been since your return to Australia in mid-2014, for which you receive a carer’s pension as your income. Together, you own the house in which you both live, although it is mortgaged in circumstances that I will come to in a moment. Your mother is aged 81 and is in frail health, suffering from a number of age-related illnesses. She is unable to achieve all the daily living tasks without your assistance. Although your sister and her partner live in an upstairs apartment of your house, your sister has her own health issues and is on a disability support pension due to these, while her partner suffers from schizophrenia. It follows that you are the sole carer for your mother.
[13] Exhibit 10
[14] Added to Exhibit 4
[15] Exhibit 11
19 The material received recently on your behalf indicates that no specific enquiries have been made as to what care could be provided for your mother, and by whom, in the event that you were sentenced to immediate imprisonment today. Dr Pilkington, in her letter dated 28 January 2016, outlines in general terms the involvement of the Aged Care Assessment Team (ACAT), should you not be able to care for your mother. This process can take some time and the outcome is dependent on a number of factors. It seems no enquiries were actually made with ACAT by you or anyone associated with your mother, and I note that no reference is made by the doctor to any local council services for in-home care, although I was told that your solicitor did make enquiries at the council but, once again, an application needs, to be made for assessment before needs, and an outcome for ongoing care, can be determined. It is clear that your mother only wants you to care for her. In her letters dated 6 and 28 January, 2016, Dr Pilkington assesses your mother as requiring high care, either full time in the home, or through the aged care system in hostel accommodation. She is not considered to be at the level of requiring nursing home care.
20 This morning, I heard submissions from both counsel on this topic. Your counsel submitted that the material does demonstrate exceptional circumstances which permit me to exercise leniency in your case and not impose a sentence of imprisonment which you must serve. The prosecutor submitted that the circumstances were not exceptional, and while it was accepted that there will be some hardship on your mother if you were to be imprisoned today, this was an unfortunate but common consequence for dependants of offenders and that is why the law requires such hardship to be exceptional.
21 Before I turn to my findings as to whether these circumstances are exceptional, I consider another aspect of your personal history which must be taken into account.
22 On 15 December 2011, you travelled to the Philippines. This was immediately after the conduct in Charge 3. You told police in your interview in July 2014 that the reason for going there was to use up frequent flyer points, no direct flight to Bangkok being available under that system, and you intended to spend a few days in Cebu before travelling on to spend time in Thailand with your partner. On 19 December the Australian Federal Police (AFP) received information that indicated to them that you had been using Facebook to procure children under 16 for sexual activity once you were in the Philippines. A warrant was executed on your business premises on 21 December and two laptop computers were seized. Forensic examination revealed the hundreds of pages of chat logs I earlier referred to, as well as the communications for the purpose of procuring a child for sexual activity in the Philippines.
23 The AFP apparently notified authorities in the Philippines of this information. A couple of days later, on 21 December, a Filipino boy known to you was requested by you to pick up your laundry and bring it across town to you as you had relocated to a different hotel. He did so, and arrived with some friends. According to you[16], they spent time in your room, eating some leftover food and watching television, and you paid them the money for the laundry. As the boys were leaving the hotel they were stopped by security and referred to the police. They were detained and later swore in court that they had been induced by the police to make false complaints of sexual abuse by you of them.
[16] As outlined in the interview with police on 2 July 2014
24
However, on the basis of their initial complaints, you were arrested on
21 December 2011, and spent 26 days in custody in Cebu. You were then released on bail but you were not permitted to leave the country. In
June 2012 you were re-arrested and remained in custody until
September 2013, when the Regional Trial Court of the Republic of the Philippines dismissed all charges against you, the complainants all having given evidence that their initial complaints were false and induced by the police[17]. It was ordered by the court that you be immediately released, but you were then taken into immigration detention, where you remained until you were returned to Australia in late June 2014. As a result, you were detained in the Philippines for 777 days.
[17] Exhibit 2
25 This was a dreadful experience, and you have been diagnosed as suffering post-traumatic stress disorder as a result[18]. Apart from the harsh conditions of imprisonment, your experience was traumatic because you were unsupported, except by visits from your lawyer and Australian embassy officials, and the family of one of the Filipino complainants who were known to you, supplied you with some food, as is the custom for prisoners in the Philippines. You suffered malnutrition, lost considerable weight, and fell physically and mentally ill. While you were in immigration detention, delay in treatment had the consequence of damaging your lungs and you suffered a collapsed lung. You were taken to hospital belatedly, in January 2014 for surgery and then returned to detention. You were ultimately returned to Australia in June 2014, were arrested on the charges before this court at the airport and bailed, and within days, you voluntarily attended at the AFP for an interview about these matters.
[18] Exhibit 3
26 Your mother and sister were also greatly affected by your incarceration in the Philippines. Your mother’s mental health, which had not been an issue before then, deteriorated considerably. Your sister has also been negatively impacted, and both suffered from the experience of learning of the allegations, both in the Philippines, and the charges before this court. Further, your business had to be sold so that your family could send money to you for legal and medical expenses, which involved considerable sums of money, and your house, owned jointly with your mother, now has a mortgage on it in the amount of $200,000.
27
It was submitted on your behalf that your current severe depression, arising out of your HIV diagnosis, and seriously exacerbated by your incarceration in the Philippines, and which was not treated until your return to Australia in
mid-2014, would be further exacerbated by you receiving a sentence of imprisonment to serve today, partly because of your previous experience in custody, and partly because of the effect on you of knowing your mother will suffer hardship from your absence. You have had suicidal thoughts while in the Philippines, and again over the last year. Dr Pilkington is of the opinion that your mother’s life will be shortened if you are to be placed into custody again, and that she has become suicidal in the past 12 months.
28 I discussed with both counsel this morning that there was a further aspect to be taken into account regarding your time in custody or detention in the Philippines. I stood the hearing down until this afternoon to hear submissions on this from both counsel.
29 Ultimately it was common ground that the period of time in custody should be taken into account and the prosecution conceded that I could also take into account the immigration detention but it was a matter for me. I will return to this aspect shortly.
30 Turning to the other matters which must be taken into account, the factors in your favour have to be weighed against the need for general deterrence, which means that the sentence I impose on you must seek to deter others from committing these sorts of offences, as well as the need for specific deterrence, which usually means that my sentence must seek to deter you from re-offending. I find that your experience in the criminal justice system of two countries is likely to have already deterred you from committing such crimes again.
31 In respect of your prospects for rehabilitation, while you are unlikely to re-offend, I still consider that the lack of expressed remorse and victim empathy in your interview shows that you have yet to achieve that level of reformation. However, your prospects are good, given your support from family and friends, your preparedness to seek and undertake employment in new fields, your lack of prior convictions and your mature age.
32 I have taken into account all the relevant factors under section s.16A Commonwealth Crimes Act, some of which I have specifically mentioned in these remarks.
33 Ultimately, the prosecutor submitted that the only appropriate sentence was a term of imprisonment. Your counsel submitted that because of all the factors in your favour, with a finding of exceptional circumstances regarding hardship to your mother, and the time to be taken into account for your previous incarceration, the sentence I impose should permit you to remain in the community.
34 I have decided that the circumstances relating to your mother are not exceptional. That is a sad and hard pronouncement to make, but I do not find that the situation falls into that rare case, forming the basis of an exercise of mercy, as required by the case law.[19]
[19] R v Markovic and Pantelic [2010] VSCA 105
35 As to the time that you were in custody in the Philippines, I am satisfied that both the period of imprisonment and the period of immigration detention should be taken into account. I include the period of immigration detention because it arose out of the charges which had previously held you in custody, and led to a further delay in your return to Australia and the beginning of the criminal justice process relating to the charges before this court. I therefore take into account what effect the imposition of a further period of imprisonment over and above 777 days will have on the overall period of incarceration within the context of the totality principle[20]. I also have regard to the factors referred to in the NSW case of Todd[21], approved by the High Court as reflecting a just and principled approach.[22]
[20] Karpinski v R [2011] VSCA 94
[21] [1982] 2 NSWLR 517 at 519-520
[22] Mill v R (1988) 166 CLR 59
36 I have assessed the sentence that is appropriate for the three charges before this court, having regard to all relevant factors. I have then considered the effect of imposing such a sentence on top of 777 days. In my view, that leads to a sentence which would offend the totality principle. Further, considerations of fairness in this case do play a dominant role in determining the ultimate sentence, particularly where the previous incarceration was for similar alleged offending (sexual activity with underage males) in the same time frame as one of the charges before this court (December 2011), and these considerations will result in this case in a degree of leniency being extended to you which would otherwise be considered quite undue.
37 To put the matter in plain language, only a sentence of imprisonment to be immediately served is appropriate for your offending on the three charges before this court. However, the sentence would be an unfair one because of the total time you would spend in custody, and because it would not recognise the factors arising out of your Philippines incarceration viz. the difficult circumstances of your time in custody and detention, the fact that you were ultimately acquitted, your progress towards rehabilitation, the uncertainty of the sentence for these offences once you returned to Australia and became aware of them, the "stale" sentencing for crimes committed between four and eight years ago, and the factors to be taken into account in your favour in these proceedings. As a result, I have decided that while a sentence of imprisonment must be imposed, it will be far less than it would have been but for all those circumstances, and I will order that you be released forthwith on conditions I will detail in a moment.
38 Ms Skoblar, the sentence that I intend to impose is six months on each charge, wholly cumulative. That means that I need to have commencement dates and I just needed your assistance as to the phrase that needs to be employed to ensure that. So the sentence on Charge 1 of six months would start today.
39 MS SKOBLAR: Yes.
40 HER HONOUR: The sentence on Charge 2 of six months would start - - -
41 MS SKOBLAR: We will pick a date. So today's date being 5 February.
42 HER HONOUR: So is it best to pick the - - -
43 MS SKOBLAR: I think it is preferable to adopt dates that would assist.
44 HER HONOUR: Rather than the expiration of the sentence?
45 MS SKOBLAR: Yes. It can also be the expiration of the sentence in Count 1 but it does - the usual practice is to select a date six months in advance.
46 HER HONOUR: All right. So the question is whether it is 4 July or 5 July.
47 MS SKOBLAR: 4 July may be the more appropriate date, Your Honour.
48
HER HONOUR: All right, thank you, thank you. Yes, thank you,
Mr Brodtmann. My apologies. If you could stand up, please.
49 You are convicted and sentenced as follows.
50 On Commonwealth Charge 1 you are convicted and sentenced to six months’ imprisonment. That sentence starts today.
51 On Commonwealth Charge 2 you are convicted and sentenced to six months’ imprisonment. That sentence starts on 4 July 2016.
52 On Commonwealth Charge 3 you are convicted and sentenced to six months’ imprisonment. That sentence starts on 4 January 2017, and to be clear, that makes a total effective sentence of 18 months' imprisonment.
53 I direct that you be released under s.20 of the Commonwealth Crimes Act forthwith on what is described as a recognisance release order on condition that you give security by recognisance of $1000 to be of good behaviour for two years and that you complete the sex offender program.
54 To make it clear, you will be released immediately, but will have 18 months’ imprisonment effectively suspended for the following two years. If you do not re-offend and you complete the sex offender program, you will not serve any more time. If you do offend and/or do not complete the program, you will forfeit $1000 and be required to complete the sentence. Do you understand that?
55 OFFENDER: Yes, thank you, Your Honour.
56 HER HONOUR: Just pardon me a moment. Yes, Charge 2 should be 4 August for six months. Yes, and consequently 4 February for Charge 3. So I will make those alterations.
57 MS SKOBLAR: Your Honour, I have draft bond forms. Would Your Honour be assisted by completion of those?
58 HER HONOUR: I think my associate has that in hand. Yes, all right. So just - that can be done in a moment. I will just deal with the other outstanding matter.
59 Returning to you, Mr Brodtmann, as a result of my sentencing you today, you become a registrable sex offender under the Sex Offenders Registration Act 2004.
60 OFFENDER: Yes, Your Honour.
61 HER HONOUR: All charges are Class 2 offences and you will be required within seven days to report your personal details and begin a regime of annual reporting required by the Act and be otherwise subject to the Act for the remainder of your life. I will now have my Associate hand to you a form which notifies you of your reporting obligations. Perhaps your instructor might accompany my associate. Thank you, Mr Toal.
62 MR TOAL: Yes.
63 MS SKOBLAR: Your Honour, while your associate is thus engaged I will note that Mr Brodtmann has consented to forfeiture of the relevant computers and has signed a consent to forfeiture for that purpose and when your associate returns I will hand up a copy of that forfeiture order.
64 HER HONOUR: That is all right. My tipstaff will receive that. Thank you.
65 MR TOAL: That is the case, Your Honour.
66 HER HONOUR: Yes, thank you. With the consent to surrender and retention, does that mean that I do not need to make any orders?
67 MS SKOBLAR: That is correct, Your Honour.
68 HER HONOUR: Just it is noted that that has been done.
69 MS SKOBLAR: Yes, that there is consent to forfeiture.
70 HER HONOUR: Yes, the final aspect is that I will not indicate what my sentence would have been but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required. Yes, just take a seat, Mr Brodtmann. Are there any further orders required?
71 MS SKOBLAR: No, Your Honour.
72 MR TOAL: Not that I can think of, Your Honour, thank you.
73 HER HONOUR: Yes. I will just have the - yes, thank you, Mr Brodtmann, you can be released from the dock now, and if you would come down to stand next to Mr Toal, you are required to sign the recognisance release order to indicate that you accept the conditions to be of good behaviour for the next two years and undertake the sex offender program. Thank you.
74 Yes, thank you. You can take a seat now behind your counsel. I thank counsel for their assistance in this difficult matter and everybody's patience in the rather protracted nature of coming to that conclusion. I will sign the order before I leave the Bench and I will again thank everyone given that it is 4.30 on a Friday afternoon. I will adjourn then until 9 am on Monday morning.
75 COUNSEL: If Your Honour pleases.
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